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The Requirements of FMLA Compliance

Avoid legal problems by providing employees with the leave they're entitled to.

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Q: I employ approximately 75 people. Do I need to comply with the Family and Medical Leave Act? And if so, what does that entail?

A: The Family and Medical Leave Act of 1993 generally requires private-sector employers with 50 or more employees to provide up to 12 workweeks of unpaid, job-protected leave, within any 12-month period, to eligible employees for certain family and medical reasons. Covered employers are also required to maintain eligible employees' pre-existing group health insurance coverage during the leave and to restore eligible employees to the same or an equivalent position at the conclusion of the FMLA leave.

To be eligible for FMLA benefits, an employee must:

  • work for a covered employer
  • have worked for the employer for at least 12 months
  • have worked at least 1,250 hours over the previous 12 months
  • work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer at a single work site, or at multiple work sites within a range of 75 miles

Eligible employees may be entitled to take FMLA leave for any of the following reasons:

  • The birth and care of a newborn child of the employee
  • Placement with the employee of a child for adoption or foster care
  • Care for an immediate family member (spouse, child or parent) with a serious health condition
  • When the employee is unable to work because of a serious health condition

Both the employer and the employee have notice requirements under the FMLA. Specifically, employees seeking to use FMLA leave are required to provide 30 days' advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. The notice from the employee can be verbal. However, the employer may request that employees comply with its customary and usual notice and procedural requirements for requesting leave.

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Employers may also require employees to provide medical certification supporting the need for leave due to a serious health condition, second or third medical opinions (at the employer's expense) and periodic recertification, and periodic reports during FMLA leave regarding the employee's status and intent to return to work.

As for the employers' notice requirements, employers must advise the employee on whether he or she is eligible for FMLA leave within two days of making the eligibility determination and prior to the date the requested leave is to begin. If the employer fails to do so, the employee will be deemed eligible.

An employer may not designate FMLA leave retroactively. That is, absence preceding the notice to the employee of the designation of the leave as FMLA leave may not be counted against the employee's 12-week FMLA leave entitlement.

Some important miscellaneous provisions of the FMLA:

  • Spouses employed by the same employer are jointly entitled to a combined total of 12 work-weeks of family leave for the birth and care of a newborn child, for placement with the employees of a child for adoption or foster care, and to care for a parent who has a serious health condition.
  • Under some circumstances, employees may take FMLA leave intermittently--which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.
  • Although most employees are entitled to be returned to the same or an equivalent position at the conclusion of their FMLA leave, employers can deny job restoration to a salaried employee who is among the highest paid 10 percent of the employer's workforce, if that person is considered a "key employee." However, this designation must occur at the time the leave is designated.

This article only addresses some of the basic requirements of the FMLA. If an employer makes the determination that it is covered by the FMLA, whether or not any of its individual employees is actually entitled to FMLA leave will depend on the particular circumstances of the employee seeking leave and will require specific case-by-case analysis. If an employer believes it is covered by the FMLA but it is not currently complying with the FMLA, or if an employer believes it will be soon be covered by the FMLA due to growth in the company, it should seek professional advice to ensure compliance.

Note: The information in this column is provided by the author, not All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.

Larry Rosenfeld is co-chair of the national labor and employment practice of the law firm Greenberg Traurig LLP. A frequent writer and lecturer on employment law topics, Rosenfeld is experienced in the areas of federal laws pertaining to employment issues, EEOC, ADA, termination matters, employment liability and the Fair Labor Standards Act.